Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2023] FedCFamC2G 713

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lovepreet v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 713

File number:	MLG 2317 of 2022
Judgment of:	JUDGE RILEY
Date of judgment:	1 August 2023
Catchwords:	MIGRATION – Administrative Appeals Tribunal – student visa – application to review a decision of a registrar to summarily dismiss an application to review a decision of the Tribunal – hearing de novo - application to review dismissed.
Legislation:	Migration Regulations 1994 subclause 500.211 of Schedule 2
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of hearing:	1 August 2023
Place:	Melbourne
Advocate for the Applicant:	In person
Advocate for the First Respondent:	Alana Meaney
Advocate for the Second Respondent:	No appearance
Solicitor for the First and Second Respondents:	Mills Oakley

ORDERS

MLG 2317 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

LOVEPREET LOVEPREET
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	1 August 2023

THE COURT ORDERS THAT:

1.The time for the applicant to file and serve an application to review the decision of the registrar made on 23 June 2023 be extended to 4pm on 10 July 2023.

2.The application for review filed on 10 July 2023 be dismissed.

3.The applicant pay the first respondent’s costs of the application filed on 10 July 2023 fixed in the sum of $750.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE RILEY:

1. The application before the court is, firstly, for an extension of time in which to file an application to review a decision of a registrar. The registrar summarily dismissed an application to review the Administrative Appeals Tribunal’s refusal of a student visa. The registrar made the decision on 23 June 2023. Any application to review a decision of the registrar should have been filed by 30 June 2023. In fact, the application was filed on 9 July 2023. That was a Sunday, so the application was deemed to have been filed on 10 July 2023. That means that the application was filed 10 days late. 

2. The Minister did not oppose an extension of time being granted. The Minister conceded that he would suffer no prejudice by the extension of time. The applicant explained that he was late in filing his application because he has certain health issues. Attached to his affidavit was a medical certificate indicating he was unable to attend work from 3 to 8 July 2023. That is five days in circumstances where the application was 10 days late. 

3. The critical issue in these matters is always whether the application has any realistic prospect of success. However, without delving into that issue, in view of the Minister’s lack of opposition to the extension of time, I consider that it is appropriate to simply extend time. 

4. Consequently, because an application for review of a decision of the registrar must be heard de novo, the second application before the court today is the Minister’s application for summary dismissal of the applicant’s application to review a decision made by the Tribunal.

5. The applicant applied for a student visa. A delegate of the Minister refused that application on the basis that the applicant was not a genuine temporary entrant.

6. When the matter came before the Tribunal, the applicant conceded that he did not have a certificate of enrolment at the time of the Tribunal’s hearing or at the time of its decision, which was the same day. The requirement to have a current certificate of enrolment at the time of decision was a mandatory criterion as required by subclause 500.211 of Schedule 2 to the Migration Regulations 1994. The Tribunal dismissed the application on the basis that the applicant did not meet that mandatory requirement.

7. The applicant then sought review in this court. A registrar summarily dismissed the applicant’s application on the basis that the applicant had no reasonable prospect of success.

8. The applicant then sought review of the registrar’s decision. For that purpose, he required an extension of time, which the Minister did not oppose and which I granted earlier today.

9. In the hearing of the application before me, the applicant confirmed that he relied on all of the grounds set out in his application to this court filed on 18 October 2022 and said that he did not have any additional grounds that he wished to rely upon. 

10. The applicant explained to the court that he could not get a certificate of enrolment because it was “COVID times”. The Tribunal actually noted that the applicant last completed a course of study on 17 November 2016, which was of course well before “COVID times”. And, indeed, the Tribunal’s decision was on 4 October 2022 which, while strictly during the pandemic, was certainly at a time when the restrictions and impact of the pandemic were much less than they had been previously.

11. In any event, ground 1 in the application filed on 18 October 2022 (“the application”) is as follows:

    The AAT and The Delegate of the minister erred in law and committed jurisdictional error in affirming the refusal of the Student (Temporary) (Class TU) subclass 500 visa. The AAT and the department ignored relevant consideration and considered irrelevant considerations while in assessing refusal of the visa.

    Particulars

    a. The delegate admitted to the consideration “I acknowledge that the applicant has personal ties to their home country and having considered the information available, I am satisfied that the applicant has demonstrated that their particular circumstances in their home country may not act as an incentive for them to remain in Australia. This (Personal ties to home country) is enough to prove that I am a Genuine Temporary entrant and I shall return back to Home country after completion of the studies.

    b. The delegate acknowledged that “This application is based on enrolment to undertake an Advanced Diploma of Network Security and Diploma in Information Technology, which is in a field of study is very similar but advanced to the previously completed courses, which is a necessary consideration which needed to be considered to come to a final conclusion.

    c. I have never breached any condition of my visa during my temporary stay in Australia this was completely overlooked by the tribunal. Completed my Master of Information Technology

12. Particulars (a) and (b) challenge findings made by the delegate. This court has no jurisdiction to review the delegate’s decision. In any event, as mentioned previously, the delegate made the decision on the basis of the applicant not being a genuine temporary entrant, whereas the Tribunal made its decision on the basis of the applicant not having a certificate of enrolment. Therefore, particulars (a) and (b) are irrelevant.

13. Particular (c) is also irrelevant because the ground the Tribunal relied upon was the mandatory requirement that the applicant have a current certificate of enrolment at the time of decision. 

14. Ground 2 in the application is as follows:

    The AAT asked itself the wrong question rather that looking as whole as to whether “applicant is a genuine applicant for entry and will stay as a student”.

    Particulars

    a. The Department took narrow approach to temporary visa definition in deciding my application. In Para 28 “The Tribunal has no evidence of a current Confirmation of Enrolment which would establish that the applicant meets the essential requirement under clause 500.211(a) of the Regulations.”

    In Amalgamated Society of Engineers v Adelaide Steamship) (1920): Higgins J: “The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.

    a. Rather than focusing on whole of clause 500.211(a), the AAT here focused just on the question of ‘conformation of the Enrolment”. Confirmation of Enrolment had in the past but provider cancelled the confirmation of enrolment on hearing date

    b. The AAT erred in law where it did not consider the circumstance of my study and how the present course would have been beneficial for my professional life.

15. Again, the matters raised in this ground are irrelevant because the Tribunal found that the applicant did not meet the mandatory criterion of having a current certificate of enrolment. The particulars to this ground, first of all, address the delegate’s decision. This court cannot review the delegate’s decision. In any event, the applicant in the first particular (a) took issue with the narrow focus on the applicant not having a current certificate of enrolment. However, that was a mandatory requirement, which it was entirely proper for the Tribunal to focus on.

16. The next particular, which is again marked (a), criticises the Tribunal for simply focusing on the confirmation of enrolment issue. However, as I have stated, that was a mandatory requirement and it was entirely proper for the Tribunal to focus on it.

17. In relation to particular (b), the applicant was not in a “present course” because he did not have a certificate of enrolment. In such circumstances, it was unnecessary for the Tribunal to consider the circumstances of the applicant’s study and how any course might benefit his professional knowledge. 

18. Ground 3 in the application is:

    The delegate of minister and the Tribunal erred in law and committed jurisdictional error in affirming the refusal of the Student (Temporary) (Class TU) subclass 500 visa application by department of home affairs. While deciding the application the department made several unreasonableness presumptions.

    Particulars

    (a) The tribunal unreasonably presumed and stated that “The length of time spent in Australia, brings into question their intention to return to their home country to apply their knowledge and skills there.” Rather than focusing on whole of clause 500.211(a), had the department granted me the visa my studies would be nearing to end, and I would have been planning to go back to my home country.

    (b)The delegate of the department made unreasonable presumptions that I shall not return to India after the completion of the course without any proper explanation.

    (c) The delegate of the department made unreasonable presumption regarding my genuine temporary entrant explanation.

19. In relation to particular (a), the Tribunal referred to the length of time the applicant had spent in Australia only by way of summary of the delegate’s reasons for decision. The Tribunal itself did not consider that issue because it relied entirely on the applicant not having a current certificate of enrolment, which was entirely proper.

20. In relation to particular (b), the delegate’s decision is irrelevant and cannot be reviewed by this court.

21. In relation to particular (c), the delegate’s decision cannot be reviewed by this court and is irrelevant. The Tribunal did not make the presumption mentioned by the applicant.

22. None of the grounds set out by the applicant in the application has a reasonable prospect of success.

23. From an abundance of caution, the registrar considered whether it was unreasonable for the Tribunal not to have adjourned the hearing to enable the applicant to obtain a certificate of enrolment. The Minister noted that prior to the hearing, the applicant was alerted by the Tribunal to one of the requirements of a student visa being enrolment in a registered course of study. The Tribunal sent the applicant an invitation to provide information which referred the applicant to an online form that he could complete and also set out the genuine temporary entrant criteria.

24. The applicant completed the online form and sent it back to the Tribunal. The form included the question, “Does the applicant have a current confirmation of enrolment in a registered course of study?” to which the applicant answered no. Under that answer, the online form contained the following:

    Not being enrolled in a registered course of study may be a reason or a part of a reason for the tribunal affirming a decision under review even if this is not the same criteria or issue considered by the primary decision-maker.

25. The Tribunal decision record notes that the applicant advised the Tribunal verbally that he did not have a current certificate of enrolment. There is no indication in the Tribunal’s reasons that the applicant asked for an adjournment to be able to obtain a certificate of enrolment. The applicant did not provide any evidence to this court that he asked for an adjournment before the Tribunal to be able to get a certificate of enrolment.

26. While there may be cases where it would be unreasonable for the Tribunal not to adjourn to enable an applicant to regularise their enrolment, there is no suggestion at all that the applicant in this case was anywhere near getting a certificate of enrolment or actually had any interest in getting a certificate of enrolment.

27. In the circumstances, I do not consider that there is anything unreasonable in the Tribunal’s decision to not adjourn the matter for the applicant to get a certificate of enrolment. The Tribunal had alerted the applicant to the need for a certificate of enrolment in ample time prior to the hearing. The applicant did not take the opportunity that he had been given, or ask for more time. In the circumstances, it was not unreasonable for the Tribunal to not adjourn the hearing to enable the applicant to get a certificate of enrolment.

    CONCLUSION

28. All in all, it seems to me that there is no basis upon which it could be said that the applicant has a reasonable prospect of success in his application. Therefore, the application for review of the registrar’s decision will be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       1 August 2023